People v. Kosters

App KOSTERS PEOPLE v 20, 1988, Rapids. April at Grand Docket No. 100128. Submitted 20, 1989. applied appeal for. Leave to Decided March first-degree Elroy of two counts of convicted L. Rosters was following jury trial in the Ottawa a criminal sexual conduct Bosnian, alleg- Court, appealed J. Defendant L. Circuit Calvin ing several errors. Appeals The Court of held: hearsay improperly statements admitted 1. The trial court son, victims, five-year-old made of the defendant’s which one by physi- prior him to examination a nurse who interviewed remaining However, because the the error was harmless cian. overwhelming. light against evidence defendant was defendant, against the error and circumstantial evidence direct admitting hearsay testimony of the nurse was harmless doubt, juror beyond no would have voted for a reasonable since acquittal. expert testimony properly com- admitted 2. The trial court allegedly pubic paring and those taken from defendant hairs victim, diaper almost the second defendant’s found following daughter, two-year-old defendant’s visitation with the of its child. The evidence was relevant admissible important tendency more existence of other facts to make the probable probable it the evi- or less than would be without dence. brief, prosecution reference witness 3. The inadvertent having polygraph taken a was harmless. No to defendant’s prejudice resulted therefrom. prosecutor improperly questioned as to his defendant 4. The questions preference. The were irrele- sexual orientation and ques- properly line trial terminated this vant and the court jury tioning. instructed the The trial court should have however, disregard answers; the failure to so instruct was requiring counsel did not not error reversal because defense counsel, and defense on redirect for a curative instruction _ask References 623, 776-819,884; 2d, Appeal 264- Error Evidence §§ §§ Am Jur 266, 496,1091; 471-506. Trial Witnesses § §§ Rosters questions. examination, to the same answers the same elicited prejudice therefrom. resulted No allowing its discretion did not abuse trial court 5. The leading five-year-old son prosecutor to examine defendant’s questions. errors did not the trial court’s effect of 6. The cumulative

deprive fair trial. of a defendant Affirmed. J., that the errors It is his belief dissented. W. R. beyond a reasonable doubt. not harmless were which occurred properly allowed the trial court While he believes leading five-year-old prosecutor son defendant’s to examine disagrees admit the questions, it harmless error to that was he interviewed the child. hearsay the nurse who statement was, itself, testimony addition, in so nurse’s that the he believes find the He would also prejudicial mandate a retrial. as to questioning improper as to prosecutor’s of the defendant prosecuto- prejudicial preference to be sexual orientation expert testimony that the He would also find rial misconduct. that, if it concerning pubic even hairs irrelevant and was preju- relevance, outweighed by its any such relevance had reverse. dicial effect. He would Exception. Hearsay — — Treatment Medical 1. Witnesses hearsay exception does not to the rule treatment The medical necessary reasonably to apply statements which were (MRE 803[4]). diagnosis treatment medical — — Circumstantial Evidence. 2. Law Evidence Criminal arising there- inferences evidence and reasonable Circumstantial satisfactory proof of ele- to constitute from are sufficient offense. ments of a criminal — Appeal — — 3. Harmless Error Reasonable Criminal Law Jury.—Doubt retried if it is a defendant must be Error is not harmless and complained reasonably possible the errors that in a trial free of defendant; acquit might a juror voted to have of even one overwhelming, proof aside was so must stand if the conviction error, jurors find would that all reasonable from the taint of guilt beyond doubt. a reasonable — 4. Relevant Evidence. Evidence having any tendency to make the is evidence Relevant evidence consequence any to the determina- fact that existence probable probable than it would or less of the action more tion 401). (MRE without the evidence 175 Opinion of the Court Polygraphs. — 5. Evidence evidence; polygraph not admissible as of a test are results however, brief, polygraph to a is harm- inadvertent reference less; polygraph by is not mention of a a witness the mere grounds for a mistrial. — — 6. Trial Cross-Examination Relevant Evidence. any may A matter relevant to witness be cross-examined 401). (MRE 611[b], issue in the case MRE Appeal Preserving — 7. Question. disregard jury A trial court’s failure to instruct questions requir- is not error defendant’s answers to irrelevant ing counsel fails to ask for a curative reversal where defense counsel, examination, instruction and defense on redirect elicits questions. the same to the same answers Leading Prosecuting Attorneys — — — 8. Witnesses Questions Children. prosecutor trial discretion to allow the It is within the court’s asking leeway questions young fair amount of children chief; leading questions may in his be used in the called case develop necessary to the direct examination a child extent (MRE light age 611[c]). of the child’s Kelley, Attorney General, J. Frank J. Louis Wesley Nykamp, Caruso, General, Solicitor J. Prosecuting Attorney, Gregory Babbitt, As- and Prosecuting Attorney, people. sistant for the Dodge Dodge), (by Catchick & David A. for de- fendant. P.J., and R. Before: and W. Weaver, McDonald JJ.

Peterson,* Following jury trial, P.J. defendant Weaver, first-degree of two counts of criminal was convicted 28.788(2). conduct, 750.520b; sexual MCL MSA For each defendant received concurrent sen- count thirty-five years prison. He tences of seven to appeals right. as of We affirm._

* sitting Appeals assignment. judge, Circuit on the Court of v Kosters op Opinion the Court charged abuse of with the sexual was Defendant daughter yet not two was His his two children. alleged abuse, his years time of the old at the testimony of de- In addition to was five. son fense testimony witnesses, trial included evidence at five-year-old son, Patricia of defendant’s practical McNees, nurse who inter- a licensed examined he was viewed the son before pe- physician, Banfield, the children’s Dr. Francis expert in diatrician, Hickok, Dr. David a medical Margaret Kosters, abuse, defen- area of child investiga- police ex-wife, in the involved dant’s in his own behalf. tion. Defendant testified

i appeal, that the trial court defendant asserts On improperly hearsay statements which admitted agree that this McNees. We son made Nurse MRE have been excluded under should 803(4), reasonably were not since the statements diagnosis necessary treatment. See to medical App 39, Wilkins, Mich However, 815 the error was harmless evidence lv den remaining

because the overwhelming. against defendant was gave five-year-old son direct testi- Defendant’s against though mony testimony his father. Even the child’s inconsistent, it was credi-

was at times particu- jury fact, it. In this ble and believed multiple incidents of abuse over a lar case of inconsistency period very time, the child’s lends credibility testimony, to his since it tends to show memory boy relying on his child’s prelearned delivering and adult-incul- and was testimony. cated explicit. boy’s testimony The child testi-

The finger put his into his fied that he saw his father 175 Mich op Opinion the Court vagina, in three were while all little sister’s girl’s both touched defendant the bathroom area), (groin "privates” boy’s and buttock and the and that defendant in nail him with a touched reasonably genital maintained area. It cannot genitals touching a child’s adult that an nail is tion or imagina- range normally within Young experience five-year-old child. of a five-year-old do not often child like this children see, things read about ever, on television or if such in them books. testimony, there child’s direct

In addition to the of defendant’s ex-wife also the was the was examining physician. abuse The fact of sexual clearly children. The exam- shown as to both findings vaginal ining physician penetrations his testified to daughter injuries to defendant’s repeated penetrations to both children. and of anal against de- Further, evidence the circumstantial strong. It is well established fendant was circumstantial evidence arising inferences

and reasonable satis- are sufficient to constitute therefrom factory proof of a criminal offense. of the elements Johnson, v Frank (1985), den 425 Mich 855 lv NW2d presented at trial circumstantial evidence injuries the unlikelihood that sexual indicated the two children could have occurred while custody there had no mother’s been their males grand- other than the maternal the house question, during period and, father presence had not been out of the mother’s children only except babysitter hour. twice with opportunity Moreover, to com- defendant had particularly occasions, acts, after on three mit vaginal irritation on mother observed a which the daughter. police told that he had Defendant daughter of these on one alone with been 753 People Kosters v Opinion of the Court occasions, both to and he also made statements guilt. tending police indicate his and to a friend light circumstantial evi- of the direct and admitting against defendant, the error of dence hearsay testimony McNees was of Nurse beyond doubt, since no harmless a reasonable acquittal. juror v have voted for would App Christensen, 23, 32-33; 235 50 64 Mich NW2d (1976). (1975), lv den 397 Mich 839 ii argues that the trial court im- Defendant also comparing pu- properly expert testimony admitted alleg- taken from defendant with those bic hairs diaper daughter edly found in the of defendant’s disagree following defendant’s visitation. We pubic hair evidence did not this contention. it to connect need to be excluded because tended admissible un- defendant with the crime and was der MRE 401. 40, 49-51; App Horton, Mich v 99 See (1980), on other 297 NW2d 857 vacated (1980), grounds 410 Mich 865 on remand 107 Mich (1981), App (1984); 942 739; 310 lv den Mich NW2d People Goree, 693, 701; v 132 Mich (1984); People Furman, 158 Mich NW2d 302, 327-328; 404 den 429 NW2d lv (1987). Mich 851 distinguishable clearly from

The instant case is People Nichols, 67 NW2d 230 paternity Here, Nichols was a case. pubic immediately after defen- hairs were found June 1986—which defen- dant’s visitation of during had one which he been dant admitted was following daughter, alone with his vaginal on the child. observed a irritation mother Hence, Nichols, the evi- unlike the situation showing pubic could have hairs dence App 748 op Opinion the Court admissible relevant and from defendant come make the existence tendency of its proba- or less probable more facts important other MRE the evidence. without it would be than ble 401.

hi it was contention defendant’s reject We also witness a prosecution reversal requiring error had that defendant on cross-examination to state previous conjunction polygraph taken a charge. abuse sexual request to defense counsel’s responding

In by advised she had been jury when she tell that, in their Department Sheriffs County Ottawa by abused sexually had not been opinion, son El- defendant, replied: "When defendant’s ex-wife coun- Upon defense the lie-detector test.” took roy instruction, the trial court’s objection sel’s her answer. rephrased ex-wife defendant’s instruction, but de- a curative trial court offered refused it when the court declined fendant the lie-detector passed that he had the jury advise test. (lie-detector) test are of a polygraph The results People v Michigan. as evidence

not admissible Frechette, (1968). 64, 68; 155 830 380 Mich NW2d brief, to a However, poly- inadvertent reference People Tyrer, 19 Mich harmless. graph is 484; (1969), 385 Mich app dis 51; 172 NW2d (1971). of a The mere mention NW2d for mistrial. grounds is not a witness polygraph by People Paffhousen, 346, 351; 174 20 Mich (1970). (1969), lv den 383 Mich NW2d 69 respon- ex-wife was of defendant’s The answer the jury Because phrased question. a poorly sive to defendant charge did not police knew v Kosters Opinion Court allegations, following it is not reason- the earlier jury have believed to assume that could able pass test. The matter was defendant did again, or either the witness not mentioned polygraph reference to defendant’s counsel. The and was therefore harm- and inadvertent brief required supra. Tyrer, reversal is less. No prejudice. no See v Alvin defendant shows Johnson, 424, 436-437; 240 NW2d (1976), cert den 429 reh den 396 Mich 992 370; 50 L US 97 S Ct Ed 2d iv there occurred Defendant further contends requiring prosecutorial misconduct reversal when prosecutor questioned as to his sex- defendant preference. unper- ual orientation and We are argument. suaded this Michigan, may a witness relevant be cross-examined any

on MRE matter to an issue the case.

611(b), MRE 401. Since there is no known child and the sexual connection between orientation of those who abuse

sexually children, abuse prosecutor’s questions appear the to have been correctly irrelevant and the trial court terminated questioning. line of this also have instructed the

The trial court should disregard jury Stin- to the answers. See v son, 719, 513 726-727; 318 NW2d Mich (1983). However, lv den 417 Mich 957 fail- requiring jury not error ure to so instruct the was (1) asked reversal because defense counsel never (2) counsel for a curative instruction and defense answers on redirect examination elicited the same questions objected on to the same to which he had Defense counsel’s omission to cross-examination. request any error in a curative instruction waived 175 Mich Opinion the Court give instruction. to such failure trial court’s prejudice, reversal no defendant shows

Because required. Robinson, v not 562-563; (1972). argument reject defendant’s

alsoWe allowing the in its discretion trial court abused five-year-old prosecutor son examine defendant’s to questions. leading the trial It within was prosecutor judge’s a fair young to allow discretion asking questions leeway amount People Hicks, in his case chief. called children 2 Mich App 461, Our NW2d prosecutor’s matter shows review of this leading than no more direct examination necessary age given witness questions only prosecutor’s were uneasiness. leading develop necessary to the extent 611(c). light age. testimony MRE of his witness’s VI argument the cumula- is that Defendant’s final deprive errors was to of the trial court’s tive effect disagree. trial. We defendant of a fair allowing hearsay court’s error of The trial harmless, as was of Nurse McNees was mention of defendant’s the having and inadvertent brief Regarding polygraph. the court’s taken a following give instruction a curative failure questioning improper prosecutorial to defen- as orientation, defense counsel waived sexual dant’s request by failing objection a curative instruc- by proceeding line of the same tion and questioning himself. together cannot be said errors taken

These three Kosters by Peterson, Dissent W. R. J. cumulatively to have denied defendant a fair trial. Smith, 220, 225; See NW2d 156 light lv den 428 Mich 903 five-year-old son’s credible direct testi- examining physician’s mony, the uncontroverted abuse, evidence of actual sexual pieces and numerous including of circumstantial evidence but not pubic hairs, determined against the evidence overwhelming defendant was so that no juror acquittal. reasonable would have voted for Affirmed. J., concurred.

McDonald, (dissenting). W. R. I am unable to say that the errors which occurred herein were beyond Indeed, harmless a I reasonable doubt. prejudicial require view one error as so as to in reversal itself. clearly

No case could more demonstrate our problems attempting in to deal with the sexual abuse of small children context traditional prosecution. of a criminal The children here in- daughter, volved were following who, defendant’s son and separation divorce, a bitter were only periodic with defendant for visitation. That they subjected depravity had been to acts of sexual vagi- was clear. The medical evidence established penetrations injuries daugh- nal to defendant’s physical ter, and both children showed effects of repeated penetrations. prosecu- anal It was the perpetrated tion’s claim that such abuse was during the children visitations with defendant.1 instigated previous investigation Defendant’s ex-wife had alleged son, investigation sexual abuse defendant of their dropped was passed for lack of evidence and in the course of which defendant polygraph examination. Reference to the "lie-detector test” ground appeal the ex-wife has been raised as a but I find no clearly error. The reference was inadvertent a context App 748 175 Mich 758 by J. W. R. daughter yet years of was not two

Defendant’s age son was a Defendant’s not witness. and was questionable years a witness. The five competency old and was recognized is children as witnesses of 2 requires by that trial court the a statute* special under the when a child make examination age years produced to deter- ten is as a witness of intelligence whether the child “has sufficient mine obligation to tell the truth to be sense of and testify.”3 safely to admitted the claim error in trial does not Defendant testify. to He does court’s contend, however, that, to allow son decision given susceptibility the of give by young child to an answer wanted such a allowing questioner, judge the trial erred the leading questions prosecutor. by the the use of leading questions of that a number record shows passed apparent jury to the that defendant had the which it had test be to prejudice him that could been no to the so there have Johnson, 424; People 240 729 Alvin 396 Mich NW2d reference. (1976). v 600.2163; People, 10 MSA And see Washburn v 2MCL 27 A.2163. (1880); (1862); People, 286; 44 Mich 6 NW Mich 372 McGuire v (1902); Minchella, Beech, 622; People v 129 Mich NW 363 (1934). 123; 735; ALR the 268 Mich 255 NW Whether statute the has adoption MRE 601 has not been considered since been overridden Dixon, of of the Rules Evidence James [cf. contemplates (1980)], clearly MRE that 291 NW2d 106 but competency the court in this and other situations trial must consider involving capacity. mental competent young may as Concerns to whether a child witness many go capacity to involve recount factors which both to recall (i.e., sugges completely susceptibility accurately to false tion, memory, vocabulary, imagination, span, attention fear and capacity practical judgments timidity) and make moral and as to regarding significance of facts which the truthfulness and sought. is competency suggested judicial It has been concern about young inaccuracy lies less in a fear of than children to be witnesses McCormick, ability testimony. jury’s assay a distrust of a Evidence and, such (3d so, ed), p wrong; perhaps emphasis If 156. § explain reported in which child how dearth cases disqualified testifying. virtually happens. It never witnesses are Weihofen, from Competence Credibility, L Testimonial 34 Geo Wash Rev 53 v Kosters Peteeson, Dissent W. R. only asked, was an one instance were but ground.4 specifically objection on that made question repeated prior instance, statement and seems to have been a transi- of the witness question intended to return the attention tional particular subject. to that Subse- the witness place quently, defense counsel asked to ing objection to a continu- leading questions, but the direct completed shortly of the witness was examination points thereafter and defendant out no instances leading questions general objection. after the 611(c) provides "[l]eading questions MRE should not be used on the direct examination of a except necessary develop may witness as be to his testimony.” The rule is consistent with earlier Michigan recognizing the decisions discretion of allowing leading questions. in the trial court Young represent witnesses have been said to the leading questions ap- classic propriate. where situation are 611(05), p Weinstein, Evidence, § 3 611- People Kratz, 80; 334, 230 Mich 203 NW (1925). particularly where, That would be true leading questions here, with as some of the the purpose memory is to focus the and concentration particular of a timid or distracted witness on a place say time, or event. That is not to that there may not be a fine line between those aims and the 611(c) suggestion,5 risk of false but MRE leaves it judge to trial the to balance the to need draw against evidence from the witness the risk the testimony response leading questions might in to say be inaccurate. I cannot on this record that the judge trial herein abused his discretion regard._ instance, question leading, objection In another to a that was grounds, overruling

was made on other the of not errone which was ous. People, See Coon v 99 Ill W. R. however, trial, the shows

The course legitimacy the exist about the concerns that testify, particu- competence young to children might put larly their into fear that words the leading questions during only by mouths, trial not pretrial suggestion. but testimony conduct about his father’s The son’s "touching,” primarily couched terms using by using doll, sometimes demonstrated designate genitals "private” the to the word meaning having apparently a dual the word "butt” anus, either or area of of particular meaning buttocks being always from clear tending part his That record. guilt may as thus be summarized show defendant’s unspecified Sunday, the children follows: anOn house; the a ladder at son carried were from the climbed it to look saw defendant defendant’s garage the side of the house and window; the son the bathroom finger

put daughter’s his in the "private”; day in the later that both children were and, had after son bathroom with defendant gone bathroom, touched his son defendant pants zipping up "private” on his and also before son’s put his hand his son’s butt and inside daughter (indicating groin touched his area); had his son buttock defendant once touched area) genital (indicating had a nail and daughter also; one touched with nail and no his way else touched the son the defendant had ever touched him. testimony only direct

The of the son was bearing guilt. His testi- evidence on defendant’s mony supported by circumstantial evidence: (1) through opportunity that his defendant had particularly rights acts, visitation to commit the occasions, 24, on June June and June three (2) that, after each of these visitations with People v Kosters W.R. vaginal defendant, the mother observed irrita- (3) daughter; tion on the that after the June 18 (a) changed visitation with defendant the bling pubic mother daughter’s diaper and found two hairs resem- therein, hairs which hairs later were (b) police, to the and which delivered expert compared hairs and with found similar to hairs (c) defendant, and taken from that told defendant daugh- a detective that he had been alone (4) during ter 18 visitation; June that it would unlikely injuries that the to the children could custody have occurred while their mother’s any there never were males in the house grandfather, other than the maternal and that during last half of June the children had been presence only out of the mother’s twice then and (5) babysitter only with a an hour; female that tending had defendant cate made statements to indi- guilt to a detective the effect that he did doing anything not remember like he was accused doing asking possible and it if was to do some- it; (6) thing like that remember friend, defendant made statements to a when dis- cussing charges, to the effect even if he people acting did it were like it was the most (7) thing happen; terrible that could hearsay statements were attributed to the son as primarily through acts, to defendant’s offered testimony of Patricia McNees.

The of defendant’s ex-wife was that on police 26, 1986, June she went to the with her suspicions hairs said had she she daughter’s diaper found in the A June 18. daughter detective advised her pediatrician, pediatrician, take to a her day. which she did the same Dr. previously Banfield, had exam- daughter ined the prior complaint in connection with the ex-wife’s

of sexual abuse defendant and by J. Peterson, W. R. evidence to substantiate found no that occasion complaint. however, he did find On June the physical referred her above and evidence noted the Michigan Hickok at the Southwest Dr. David saw Dr. Hickok Center Health Education (smhec). following day, daughter 27, and June the the findings. physical to his testified that sometime also testified Defendant’s ex-wife ques- June, after she had in late and thereafter father, the son told her about his tioned for the son July first time defendant’s acts. On about by 1, the a detective and son was interviewed taped, gave no he informa- interview was video but by indicating defendant.6 On sexual abuse tion July 18, to the smhec clinic to was taken son Hickok, and Dr. Hickok testi- Dr. examined be repeated findings anal his indicative fied to penetration. It was on this occasion son practical nurse, Patricia was interviewed McNees. that she had talked to defen-

McNees testified talking to the son. She was ex-wife before dant’s nature of the ex-wife’s accusations aware of the against prior to the defendant and of an incident related against

complaint by the ex-wife her hus- she claimed that son had tried band which put penis his mouth said he into sister’s and daddy After it that was what did.7 did questions, general about McNees told son some touches, gave good good although explaining bad, who and out daddies. She also

touches she left "protective video” was offered in evidence. The so-called services seen, portion portion audio was defective the video could While could not be heard. this incident. McNees testified that Defendant’s ex-wife testified to it, that act he denied she she asked persisted, saying, too? son about such an before, this time "He it didn’t he? Did he do it did answered, put your “I The son don’t did he mouth?” What know,” upset. became People v Kosters Dissent W.R. explained that bad touches could be inside or outside clothes. She then obtained the son’s state- given ments that defendant had inside his clothes or when his clothes were him bad touches

off, that happened bedroom, it in the that defendant did any on, not have his clothes that defendant touched (the son’s) wet, bottom and made it that he wiped paper, his bottom with toilet and that what slimy. was it was white and The son also told "pee pee” McNees that defendant once touched his Later, nail. McNees asked the son if it you,” yes. "hurt when he did and he said Repeated questions son about how defen- produced dant touched him his responses. sister uncer- finally tain, or nonverbal no McNees if asked the son anyone, his dad had asked him not to tell replied, "yes.” to which he McNees then drew statements from the son that his dad would get spank mad and would him. pretrial

A motion to exclude of hearsay McNees as was denied. The motion was again renewed at trial and It was overruled. is the prosecution testimony, contention of though hearsay, 803(4), was admissible under MRE provides: following are not hearsay excluded

rule, though even the declarant is as available witness: (4) purposes Statements made of medical diagnosis

treatment or medical treatment. in connection with purposes of Statements made for medi- diagnosis cal treatment or medical in connection describing history, with treatment and medical or past the present pain, sensations, or symptoms, or or inception general or character of the cause or external source reasonably thereof insofar as nec- essary diagnosis to such and treatment. App 175 W. R. 803(4), originally proposed, followed as

MRE 803(4) verbatim, Evidence Rules of § Federal complete representing of Michi- reversal an almost adopted ultimately gan precedent.8 our Su- As seq. preme 803(4) MRE Court, 402 Mich lxxxviii et 803(4) FRE broad than somewhat less extending hearsay the relaxation purposes solely for to statements made exclusion particular diagnosis and in one other significant to cases such as this. 803(4) as to admission the bar

MRE removes (1) hearsay medical statements: kinds three history; (2) pain past present symptoms, or or (3) inception general charac- or sensation; and thereof. It does or source ter of the cause external requirements. justify upon In order to the so two propo- statement, its the out-of-court admission of first, establish, the statement nent must particular purpose, i.e., medical for for a made diagnosis in connection treatment or for medical treatment, and, second, that statement the with diagnosis reasonably necessary such was treatment. to requirement, the Michi- In this second gan rule, than the federal rule is more restrictive requires only the be reason- statement diagnosis pertinent ably or treatment. to require- of the rule the first The rationale lies upon person is the belief that ment and founded seeking a "motive to dis- medical treatment has part truth because his treatment will close the depend upon says.”9 true, If this be the what he sufficiently to be statement should be considered 8 Evidence, Michigan hearsay adoption the of Prior to the of Rules histories, pain past symptoms, or and causes of medical statements thereof were condition physician contemporaneous Hearsay of inadmissible. statements except to by when made the the declarant were admissible litigation. purposes notes. of See the Committee for (CA 2, 1940). States, Meaney 538, United 112 F2d v Rosters by W. R. trustworthy of fact.10 the finder to considered be requirement, origin the of the second ("pertinent,” reasonably FRE; "nec- statement MRE) ("or,” diagnosis "and,” essary,” MRE) FRE; to such objective It is an treatment, more obscure. focusing of the state- the medical relevance test at to an issue than on its relevance rather ment seemingly re- unrelated to the first trial and is quirement, of mind of on the state which focuses the declarant.11 inception, describing or cause

Statements pain symptoms, of or sensation external source attributing of fault would the realm which enter 803(4) MRE inadmissible under to be seem (1) only the rule allows statements three reasons: general rather than of character about (2) speciñc cause;12 statements character generally fixing motivated fault are (3) obtaining purpose treatment;13 and medical objective viewpoint of statements, from the such adoption Co, Evidence sufficiently ought Weinstein, Evidence, 803(3)[5],p from cases 633 F2d 803(6), contrary need would was a red the court held ment made for the accusatory ^[12] 13 hearsay There are This "Thus a In United States v not for the not be admissible in evidence. light.” to be qualify or relied treating to MRE view, (Chadboum rev), (CA8, 1980), reliable dealing rule such as sufficiently Advisory patient’s nature, but frequent that a declarant’s statement Michigan upon by or course, not his statement purpose purpose of to be 52 NW 745 § diagnosing Committee’s statement allows the thus Narciso, statements reliable to be considered but had been business records for a depended upon Rules §§ lacking of treatment but that is a non pp 103-113. 1719-1720, obtaining expert laboratory 446 F that he was struck expert physician 803-129; Note, the inherent rejected by Michigan prior Evidence. that the car was driven witness Supp treatment. FRE See sequitur probably or effect that rely United States v as to who was and offered diagnosis x-ray report 803(4). Lacas v Detroit under FRE 703 generally was, on facts or data which opinion reliability 289 as by to (ED Mich, 1977), hearsay evidence, e.g., 4 exceptions under MRE relied responsible automobile Iron treatment Wigmore, borrowed contrary, through deemed a state City which, to the Shell, upon R App 175 748

766 W. R. medicine, to irrele- would seem be practice diagnosis.14 to treatment vant Nick, (CA 9, In United States v 1199 604 F2d Shell, States v Iron and United 1979), 633 77 F2d (CA (1981), 8, 1980), 450 US 1001 state- cert den children as to ments made to small physicians by held inflicted them were upon sexual assaults in Iron 803(4). FRE The court admissible under Shell, rule, stated: describing the basis of two-part naturally A test flows from this dual first, rationale: is the declarant’s motive consistent second, rule; purpose of the is it

with the reasonable for the on the infor- physician rely to [Id., diagnosis p mation in or treatment. 84.] court, however, say: also went on to important It note that statements happened concern what rather than who assaulted pertinent her. The former most cases is diagnosis and treatment while the latter would related.[15] [Id., p seldom, ever, if sufficiently 84.] Michigan appli- Four cases have considered the 14 Co, 179, 187; 8, 1981). Bradbury (1983); v Ford Motor 123 Mich (CA v Hollocber, 214 Roberts 664 F2d 200 identify The statements recounted in Iron Shell Nick and did Shell, hearsay assailant. Consistent with this dictum Iron identity statements as to the under FRE of an assailant have been excluded 803(4) or similar state rules either because such informa "sufficiently (reasonably pertinent) tion is not related” to medical diagnosis and treatment or because the statement was not made (with motive) purpose obtaining declarant for medical True, (Maine, 1981); treatment. See State v 438 A2d 460 Hassell v (Tex State, 1980); Brubaker, App, Crim SW2d State v 294; (1979); Jeffers, 404; Mont 602 P2d 974 State v 135 Ariz 661 P2d (1983); Narciso, supra. United States v Contra, Bouchard, (1982), State v Wash 639 P2d 761 Wilkins, App 39; case similar to 349 NW2d 815 State, 1983), (Wy, and Goldade v 674 P2d 721 cert den 467 US (1984), where, decision, conviction, split in a defendant’s based solely child who had been held physician on the of a as to statements made incompetent testify, affirmed. 767 v Rosters Peterson, J. W. R. 803(4) the of MRE statements cation her identified his or assailant. declarant-victim App 39; 349 815 Wilkins, NW2d v (1985), (1984), nine-year-old a den 422 Mich 862 lv Family girl Assessment Clinic told a doctor at Michigan University history of a of sexual State at stepfather, prosecuted and her who was abuse of the doctor therefor. convicted recounting upheld con- was as those statements two-part forming in Iron to the test described rejected the contention that state- The Court Shell. perpe- defendant as the ments which identified the reasonably necessary to of the were not trator diagnosis acts opinion is unclear as and treatment. The evidentiary foundation for conclusion to the reasonably necessary such statements were appears diagnosis treatment, it but and psychological damage to the was evidence of there child treatment included referral to a victim since psychologist. The Court found that the identifica- family a member as a source of the sexual tion of necessary adequately diagnose and was abuse impact on sexual abuse the child.16 treat Rinesmith, 475; 144 In re Mich (1985), (1985), appeal 855 lv den Mich probate parental a court’s from rights, termination was decided reliance Wilkins question on the of whether likewise turned identifying child, her father as statement spoke removal of from The Court also home as of recommended the child treatment,” though questioned "part may it See United States this constitutes "medical treatment.” also whether (CA 8, 1985), Smith, 76; Renville, 779 315 NC F2d 430 State v SE2d 833 (1986). Aguallo, 318 NC 350 SE2d and State jurisdictions from have been and similar cases other Wilkins subject child sex of criticism. "Concern over the recent revelations of distort, expand, if state courts to abuse have caused several concept Graham, diagnosis Handbook of Federal or treatment.” (2d ed, 803.4, 828, 1986), p n 4. Evidence § 175 Dissent W. R. pain "pee pee,” reasonably cause of her diagnosis necessary for treatment. While Wil- sparse some reference to the kins at least made foundation made in the trial court to establish reasonably necessary that medical totally the statement was diagnosis treatment, Rinesmith is In devoid reference to such evidence. fact, Rinesmith seems to confuse reasonable neces- sity viewpoint from the the medical state of mind of the declarant child.17 People Zysk, App 452; (1986), a nurse testified to the account of by sexual made the victim on assault admission to hospital emergency treatment, room for which account included an identification of defendant as Wilkins, her assailant. rejected In reliance on this Court argument the defendant’s that the state- pertinent.”18 "reasonably Again, ment was not adequacy the necessity of the medical foundation for suspect, apparently of the statement is use consist- ing solely getting assertion of the nurse that very important the victim’s account was in the suggested, Zysk treatment of the victim. The Court may discussion, that it without have been error to part identifying admit of the statement defen- 17"Angel pain. Angel brought suffered internal had been to Dr. prior company parents Daniel’s office on a in the occasion of her could, personnel. Angel therefore, logically conclude that Dr. dss position help regard problems physical Daniel arising in a was to her in to problems family. Angel out of within her look could to Dr. only pain Daniel not to alleviate the immediate but take some prevent pain recurring action to intervene and from in the future. light, pain Viewed this revelation of the fact that was caused by sexual abuse and that that was inflicted abuse a member of her family Angel reasonably Rinesmith, necessary p was to obtain relief.” 479. years was four old. 803(4) posed argument using language Defendant his of FRE "reasonably language 803(4), necessary” rather error which the perhaps than the MRE an Zysk opinion correct, oversight did not or note by language Wilkins, quoted p Zysk, induced at 457 of reasonable,” reasonably necessary, "it must rather than "for the physician rely diagnosis on the information in and treatment.” Kosters R. Dissent W. that, so, if the error but said the attacker dant as prejudicial his identifi- since to defendant was not at issue. never cation was Freiburger, 251; 395 NW2d In re ap- rights parental appellant-father termination was a 300 peal ally allegedly sexu- wherein abused "psychiatric daughter. social A testify hear- to nonverbal allowed was worker” anatomically using daughter say, so-called a demonstration to her father’s dolls, as correct acts MRE troubling under held admissible was and such 803(4) opinion Again, and Wilkins. whether failure to discuss of its demonstrating record in the there was evidence requiring problems medical the child had that treatment, purpose for was the whether made,19 the act whether the statement requiring of the condition was a cause described obtaining of the state- treatment, whether reasonably necessary medical treat- ment was ment. lack of foundation by Judge noted this A dissent Borradaile of in the record the absence "psychiatric worker,” her social evidence about qualifications any her work bore and whether opinion, majority at to medicine. relation rejected under to be admissible the claim 803(4) hearsay made must be statement MRE to a any may physician.20 true in But, be while this say given re- the other case, to is not quirements it follow met, nor does need testify qualified non-physician to the to is that the required medi- reasonable to establish foundation necessity treat- medical for for the statement cal ment and diagnosis._ Rinesmith, mingle concepts opinion of the to seems As in treatment, getting necessity for motive and of medical

declarant’s into the motives questioner. Reutter, 313; Citing Galli v 148 Mich 803(4). Advisory Note to PRE Committees Dissent W. R. cases, then, affirm of hearsay

These the use 803(4), but, statements under MRE because of the questions appeal, in which were raised on way they leave much unsaid or assumed. There is a question further has not been addressed any of those cases and that is whether the state- ment is itself of such a nature as to qualify inception admission: Is the statement one of or past or a general cause or external source present symptom, pain or sensation? That Zysk and Rinesmith question was not discussed in contemporane- is or probably injury pain, cause, ous with the statement were obvious. In Freiburger, however, Wilkins is put one hard guess past present pain what or or symptom, existed for accusatory sensation which the state- ment could attribute a cause. before statement summary, hearsay 803(4),

found to be admissible under MRE proponent thereof has laying burden foundation which the trial judge, pursuant 104(a),21 MRE may questions prelim- determine the (1) to admission: Is the content of the state- inary nature, qualified i.e., ment of the of medical one or of or history, past present symptoms, pain, or sensations, or of the inception general or character (2) of the cause or external source Did thereof? purpose declarant make the statement for the diagnosis medical treatment or medical connec- (3) tion with medical treatment? Does the informa- tion meet the objective being medical test of rea- sonably diagnosis and treat- necessary medical ment? case,

In the instant things none of these Brubaker, State v 184 Mont 602 P2d 974 I note that proof questions ordinarily, preliminary the offer of under MRE on the should 104(c), presence jury. of the be conducted out of the Creith, Kosters R.W. Mc- to Nurse made The statements established. any of fall within do not the son Nees categories qualified either about of statements or about that of his sister. medical condition own absolutely no idea that the son had that It is clear might telling result in McNees was Nurse he what sister, him or for his either treatment medical giving facts motive truthful the assumed and so purpose is absent. treatment of medical for the any that the whatever evidence was there Neither necessary reasonably for medical information was testimony diagnosis. fact, the of treatment referring pediatrician, Banfield, Dr. purpose to show that tended of Nurse McNees diagnosis nothing do with had the interview of purpose rather, was, for the of but treatment gathering conduct,22 and no evidence of criminal this so far as ever undertaken treatment was testimony McNees was of Nurse shows. record hearsay. inadmissible colleagues agree my

I cannot hearsay overwhelming receipt was harmless of this into evidence say circum- that there was error. To ignores guilt that the the fact stantial evidence daughter referred to was Dr. testified that defendant’s Banfield specialist whose child abuse than what he Dr. Hickok was a the clinic because testimony Banfield) (Dr. weight given greater in court would for evalua say. that the referral was would He also testified knowledge any he no and that had tion and not for treatment daughter. plan for the treatment purpose her was to to interview Nurse McNees said that While subsequent physical Dr. Hickok and examination focus the formulate a medical treatment possible plan referral for and also for practical counseling, may question nurse to the credentials of one necessity. proof objective She provide of medical the foundation of Act, interpretation Protection of the Child to a mistaken also testified 25.248(1) thought seq., seq.; she et MCL 722.621 et MSA identity compelled of abuse and her to obtain evidence abuser. necessity bearing gave the medical Dr. Hickok no contemplated any or to there information indicate such treatment. 175 Peterson, R. J. W. merely evidence was of that circumstantial

thrust opportunity prove to commit the defendant’s parental visita- he exercised his offenses because rights because, if ex-wife is to defendant’s tion oppor- believed, could had the no one else have tunity which, conclusion to commit the offenses—a might credibility assumed, her is she be- even if personal could not know of her own lieve but knowledge. only testimony of the The the son was guilt. That evidence of defendant’s testi- direct mony downright inconsistent, sometimes con- was despite tradictory, even on direct examination guidance leading questions. may that of While surprising testimony five-year- not be of proof agree inconsistency child, I that is old cannot credibility. statements of Which of the inconsistent sug- credible, rendered more that which is thus gests guilt suggests or that which innocence? To jury say that the son was credible and begs question. question, him believed jury may rather, is have been led to whether incriminating testimony of believe his erroneously hearsay. admitted We must determine "whether there is a reason- complained possibility able the evidence is,

might conviction”, to the have contributed might convincing whether it have aided in juror guilt otherwise undecided of the defendant’s beyond reasonably If it reasonable doubt. is that, possible in a trial free of the error com- of, might plained jury even one such member have defendant, acquit then the error voted not harmless, and the defendant must be retried. Swan, [People (1974).] Entirely apart herein, from other error the testi- mony prejudicial as to Nurse McNees was so v Rosters R. Dissent W. retrial. Her did more than mandate testimony. She recounted corroborate events about son’s testify, which he did events greater weight may well have carried testimony. jury And, if the mony than did his the testi- facially questionable young children is competence, trustworthy it not rendered more peril rendition. The its secondhand is not alone hearsay, in the usual frailties of but also that the repetition greater may words on weight be accorded credibility they and are heard from everything not; a witness who is the child is ma- responsible, professional, expert, good ture, of memory, seemingly objective impar- detached, and qualities credibility tial. The of attached to the relayer may of the words be attributed to the words themselves.23

Two other claims of error must be considered. improper prosecutorial by One involves conduct questioning suggest defendant so as to that he had preference sodomy. objection, a natural On prosecutor conceded that he had no evidence that engaged in defendant anal sex or homosexual prejudicial The conduct. of unfounded insinuation merely innuendo on cross-examination is not hearsay young A further concern about statements of chil apparent spontane dren is ous when the out-of-court statements are not systematic professional interrogation result but from a or The about subject litigation. potential suggestion the which is a matter of for false peril leading questions obviously greater when the questioning equivalent supervision is done without court or and safeguards. psychiatrist expressed A child testified for the herein defense opinion suggestive that McNees’ interview was so slanted and only that not but that were the statements obtained from the son unreliable might any he statements make thereafter would be contami- planted McNees, by by might nated ideas an effect which be cumula- interrogation tive or reinforced persons similar of the child other is, perhaps, peril before or after the McNees It interview. similar to that which is of concern in where cases adult witnesses Gonzales, hypnotized. have been Cf. (1982). NW2d 743 W. R. prosecutorial

irrelevancy miscon- matter of but denied the insinua- that defendant duct. fact response and on to the cross-examiner tion both in redirect examination render the miscon-

does not nonprejudicial. Ball, 33 Mich duct 288; 189 NW2d colleagues agree my with I Neither do expert admissibility so-called specialist. police laboratory testified He the state that he compared ex- the hairs which defendant’s daughter’s diaper wife said she found specimens defendant, micro- that hair taken from specimens scopic that examination showed they that were characteristic were similar they pubic hairs, that, therefore, Caucasian He ac- from the same source. could have come knowledged say he could not probability that there was that they any certainty from or came Timely appropriate objection the same source. objection testimony, made 702, MRE under MRE should have been sustained 401 and MRE 403. 702, if court Under MRE the trial determines recognized spe- technical, scientific, or other knowledge given field, it does in a cialized exist findings may opinion expert testify as to his or allow an knowledge if assist the trier of will deter- fact either to understand the evidence or to question The threshold mine fact issue. expertise comparison in hair state of scientific Frye-Davis trial under the or ing, test24was not raised at appeal. Assuming validity on of test- such proper appropriate witness, it was for the on being foundation, hairs as Cauca- to describe the knowledge help pubic hairs, sian for that would People v Young, ^[24] Frye ^[418] Davis, v United Mich 343 Mich 1; States, 348; ^{[54] [805] [72]} US NW2d (1983). App ^[269] DC (1955). 46; 293 F 1013 And see People (1923); v 775 People Kosters v R. W. testimony about to understand the trier of fact Beyond finding this, however, of such hairs. say expert. To further role for there was no might from defendant is or that not hairs could jury necessary help the evi- understand that the hairs were does not determine dence and defendant, fact in issue. from any all, at If that has relevance outweighed by prejudicial effect of relevance is superficial testimony from a witness

scientific expert. such, As it should be characterized as an MRE 403. excluded under panels of Court have demonstrated Various this inconsistency in the of circum some consideration identity of from so-called scien stantial evidence tific comparison hair, tests of blood and semen and any, proof probability required what, if as to is People e.g., See, to make such evidence admissible. App Sturdivant, 128; 283 669 v 91 Mich NW2d (1979) (1979); People , 407 Mich 933 cf. v lv den (1980); App Horton, 40; 99 Mich 297 NW2d 857 People App White, 156; 102 301 837 v Mich NW2d (1980) People App Camon, ; 474; 110 Mich 313 v (1981); People App Hayden, NW2d 322 650; v (1983); Goree, 337 258 132 NW2d v (1984); 693; 349 220 Mich NW2d Furman, 302; 246 NW2d (1987).25 lv den Mich necessary, engage however, It is not in the dialogue degrees probability, no evidence probability However, was shown here. I must disagree Horton, Goree, and Furman that any suggesting possibility identity evidence MRE 401. MRE admissible under 401 defines having any “relevant evidence” as “evidence ten- 426 A2d Carlson, United States v And see 23 ALR4th 1192 NW2d (Minn, 1978); Massey, 594 F2d 676 State v Scarlett, (CA 8, 1979); 121 NH State 37; App Mich W. R. any fact

dency [material] existence of make the to probable probable than it would or less . . . more suggests Evidence the evidence.” be without probability greater does not nor lesser a neither That was irrelevant. and is that definition meet adoption prior MRE 401 and still to the the law People 311; 67 Nichols, NW2d is. (1954), showed evidence which blood test held that particular of a the father man could be that a disprove pater- prove tendency or had no child nity irrelevant and inadmissi- therefore and was suggestion is distin- that Nichols As to the ble.26 guishable paternity case, I know of it is suggest authority of evidence the rules no paternity logic relevancy different or the cases. Other sexual conduct than in criminal cases transform can no more the hairs evidence about probability expert’s "possibility” than complainant in Nichols could Mr. at relations with Nichols that she had sexual conception. a time coincident with I would reverse._ Watkins, 406 Mich 954 v Ledura See also the dissent Boyle

(1979), concurring opinion of Justice and the Young, tests there that if the blood reliable, scientifically as there would still involved were established a relevance question to be resolved.

Case Details

Case Name: People v. Kosters

Court Name: Michigan Court of Appeals

Date Published: Mar 20, 1989

Citation: 438 N.W.2d 651

Docket Number: Docket 100128

Court Abbreviation: Mich. Ct. App.